1828059 (Refugee)

[2024] AATA 1127

1828059 (Refugee) [2024] AATA 1127 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Miss Mary O'Callaghan

CASE NUMBER:  1828059

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Alison Murphy

DATE:6 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision refusing to grant a Safe Haven Enterprise visa and substitutes a decision that the protection visa application is not valid and cannot be considered.

Statement made on 06 March 2024 at 11:11am

CATCHWORDS

REFUGEE – protection visa – stateless – unauthorised maritime arrival – application deemed invalid – temporary protection visa application granted – no jurisdiction

LEGISLATION

Migration Act 1958, ss 5AA, 45AA, 48, 65, 91
Migration Regulations 1994, Schedule 1, Item 1404; r 2.08

CASES

DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2017 to refuse to grant the applicant a Safe Haven Enterprise visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 February 2016. The delegate purported to make a decision to refuse to grant the visa on the basis that the applicant did not meet the applicable visa criteria.

   BACKGROUND

3. The applicant arrived in Australia by boat and without a visa [in] October 2012, identifying himself as a stateless Rohingyan from Myanmar.

4. He lodged an application for a Protection visa on 12 November 2013. A case note dated 18 November 2013 records that the visa application was deemed to be invalid because of the statutory bar in s 91K.

5. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a protection visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

6. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 12 December 2012. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

7. On 12 November 2013, the applicant made an application for a permanent Protection visa (Class XA) (the first visa application). This was initially considered to be an invalid visa application due to the operation of s 91K. The applicant then applied for a Safe Haven Enterprise visa (the SHEV) on 12 February 2016 (the second visa application), which was purportedly refused by a delegate on 22 February 2017. The IAA affirmed that refusal on 24 October 2017. An application for review of that decision was made on 25 September 2018.

8. As a result of the Full Federal Court’s judgments in DBB16 and CBW20, the applicant’s Protection visa application is now acknowledged to have been valid from the time it was made. As the Minister (or a delegate) had not made a decision in relation to the first visa application under s 65 of the Act by 16 December 2014, it converted to an application for a Temporary Protection visa on that date (reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations) and s 45AA of the Act).

9. On 6 October 2023 the Tribunal wrote to the applicant advising that it appeared the SHEV application was invalid because it is a requirement for a valid application for a SHEV that the applicant has not made a valid application for a temporary protection visa; or alternatively that it has been refused, granted or withdrawn. The Tribunal noted that as the temporary protection visa application had not been refused, granted or withdrawn at the time the second visa application was made, it appeared that the requirements in item 1404(3)(f) were not met and the second visa application is not a valid. The Tribunal’s correspondence set out that if that were the case, it would appear the Tribunal must set aside the delegate’s decision refusing to grant the applicant the SHEV and substitute it with a decision that the visa application is invalid.

10. On 24 October 2023 the applicant wrote to the Tribunal advising that the applicant had withdrawn the temporary protection visa application so that the Tribunal could treat the SHEV application as valid and determine the applicant’s substantive protection claims. On the same date the Tribunal responded to the effect that its preliminary view was that the SHEV application is invalid, and that invalidity cannot now be cured by withdrawing the temporary protection visa application lodged in 2013. The Tribunal’s letter noted that this was an issue that the Tribunal would discuss with him at hearing before making its decision.

11. At the hearing on 15 December 2023, the applicant’s representative advised that they had contacted the department to reverse the withdrawal of the first visa application and that reversal had been accepted by the Department. At that time the temporary protection visa application remained on foot awaiting assessment by the Department and it was accepted that the SHEV application the subject of the current review was invalid due to the operation of item 1404(3)(f).

12. On 5 March 2024, both the applicant and the Department advised the Tribunal that the assessment of the first visa application by the Department had been completed and a protection visa granted to the applicant on 5 March 2023.

    Validity of visa application the subject of the current review

13. Item 1404 of the regulations sets out the requirements for a valid SHEV application. Relevantly, item 1404(3)(f) prescribes the circumstances that must exist as follows:

    (f)  Either:

    (i)  the applicant has not made a valid application for a Temporary Protection (Class XD) visa (a TPV); or

    (ii)  the applicant has made a valid application for a TPV, and the TPV application has been refused (whether or not it has been finally determined) or withdrawn; or

    (iii)  a TPV has been granted to the applicant; or

    (iv)  the application for the Safe Haven Enterprise (Class XE) visa is made at the same time as an application for a TPV.

    Note 1:    A person to whom subparagraph (ii) applies, whose TPV application has been refused, is prevented by section 48A of the Act from making the Safe Haven Enterprise visa application unless the Minister has made a determination in relation to the person under section 48B of the Act. 

    Note 2:    If subparagraph (iv) applies, the TPV application will be invalid: see paragraph 1403(3)(f).

14. In this case the applicant made an application for a Protection visa on 12 November 2013. That visa application converted to a valid application for a Temporary Protection visa on 16 December 2014. While it was initially assessed by the Department as invalid, it is not now in dispute that it was in fact valid at the time it was made. Therefore the circumstance prescribed in item 1404(3)(f)(i) is not met.

15. As the Temporary Protection visa application had not been refused, withdrawn or granted at the time the Safe Haven Enterprise visa application was made, the circumstances prescribed in item 1404(3)(f)(ii) and (iii) for the making of a valid visa application are not met. There is no evidence before the Tribunal that the applicant met the other alternative requirement in item 1404(3)(f)(iv).

16. This means that the applicant did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid SHEV application. Accordingly, the Tribunal must set aside the delegate’s decision refusing to grant the applicant a SHEV and substitute it with a decision that the SHEV application is invalid.

    DECISION

17. The Tribunal sets aside the decision refusing to grant the SHEV visa and substitutes a decision that the SHEV application is not valid and cannot be considered.

    Alison Murphy
    Member